Grant and Grant - [2010] FamCA 534

FAMILY COURT OF AUSTRALIA

GRANT & GRANT

[2010] FamCA 534

FAMILY LAW - CHILDREN - Parental responsibility - With whom a child spends time - Whether the children should spend any time with the father and if so, under what conditions and how frequently - Family violence perpetrated by the father - Father’s parenting capacity and psychological state - Risk of harm - Independent Children’s Lawyer seeks that final orders be made for the father to spend no time with the children - Parties agree that orders be made for the children to spend supervised time - Interim orders made for the children to spend supervised time with the father, with the orders to be reviewed in six months

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286
H & K [2001] FamCA 687
Moose v Moose (2008) FLC 93-375
W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Mr Grant

RESPONDENT:

Ms Grant

INDEPENDENT CHILDREN’S LAWYER:

Ms O'Rourke, Legal Aid NSW

FILE NUMBER:

NCC

1053

2009

DATE DELIVERED:

2 July 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

8, 9, and 10 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Mr Bates

SOLICITOR FOR THE RESPONDENT:

Ms Garrick, Barbara Garrick & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms O'Rourke, Legal Aid NSW

Orders

Pending Further Order

All former parenting orders in respect of the children L, born … May 2001, and G, born … September 2002, (“the children”) are discharged.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
Each of the parties shall take all reasonable steps to ensure that the children spend supervised time with the father upon the following conditions:
(a)The supervisor shall be the staff or the nominee of the organisation known as “W Organisation”.
(b)The supervised time shall occur for a period of two hours, no less frequently than once every four weeks and no more frequently than once every two weeks, and will occur at the times appointed by the supervisor in the absence of agreement between the parties.
(c)The venue at which the time is to be spent by the children with the father shall be designated by the supervisor.
(d)The father shall pay the costs of the supervisor.
(e)The mother shall cause the delivery of the child to, and the collection of the child from, the designated venue at the commencement and conclusion of the time spent by the child with the father.
For the purposes of implementation of Order 4 hereof:
(a)Within 7 days hereof, each party shall contact “W Organisation” to arrange an intake assessment and thereafter comply with all reasonable requests, directions, and policies of that organisation and the supervisor.
(b)Leave is granted to the wife to furnish to “W Organisation”:
(i)A sealed copy of these orders.
(ii)A copy of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Grant and Grant

Details

AGLC: Grant and Grant [2010] FamCA 534
Case: [2010] FamCA 534
Decision Date: 2 July 2010

CaseChat Overview and Summary

In *Grant and Grant*, Justice Austin of the Family Court of Australia made orders concerning the parenting of two children, L and G. The dispute involved the parents' arrangements for the children's care and contact with the father.

The court was required to determine the appropriate parenting orders, including who would have parental responsibility, where the children would live, the nature and extent of the father's time with the children, and various ancillary matters designed to facilitate communication, ensure the children's welfare, and address the father's therapeutic needs.

Justice Austin discharged all former parenting orders and made new orders granting the mother sole parental responsibility and the children's residence with her. The father was granted supervised time with the children, to be facilitated by a designated organisation, with the father bearing the costs. The orders also mandated regular communication between the father and children, prohibited denigration of either parent in the children's presence, and outlined procedures for notification of medical emergencies and sharing of school reports. Furthermore, the father was ordered to undertake a post-separation parenting program, continue therapeutic treatment with his existing psychologist, and commence new psychological treatment, with provisions for waiving confidentiality to allow consultation with relevant professionals and the court. The Family Consultant was directed to provide an updated report, and the matter was adjourned for further directions.

Orders

Orders of the court

Pending Further Order

All former parenting orders in respect of the children L, born … May 2001, and G, born … September 2002, (“the children”) are discharged.

The mother shall have sole parental responsibility for the children.

The children shall live with the mother.

Each of the parties shall take all reasonable steps to ensure that the children spend supervised time with the father upon the following conditions:

(a) The supervisor shall be the staff or the nominee of the organisation known as “W Organisation”.

(b) The supervised time shall occur for a period of two hours, no less frequently than once every four weeks and no more frequently than once every two weeks, and will occur at the times appointed by the supervisor in the absence of agreement between the parties.

(d) The father shall pay the costs of the supervisor.

(e) The mother shall cause the delivery of the child to, and the collection of the child from, the designated venue at the commencement and conclusion of the time spent by the child with the father.

For the purposes of implementation of Order 4 hereof:

(a) Within 7 days hereof, each party shall contact “W Organisation” to arrange an intake assessment and thereafter comply with all reasonable requests, directions, and policies of that organisation and the supervisor.

(b) Leave is granted to the wife to furnish to “W Organisation”:

(i) A sealed copy of these orders.

(ii) A copy of the Family Report authored by Ms K dated 3 May 2010.

(iii) A copy of the expert report of Dr R dated 9 February 2010.

Each of the parties shall take all reasonable steps to ensure that the children communicate with the father each Monday, between 7.00pm and 8.00pm, and for that purpose the father shall telephone the children on the mother’s landline telephone, and the mother shall ensure that the children are able to receive the father’s calls at that time and encourage them to each speak with the father.

Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.

The mother shall notify the father of any medical emergency, illness or injury suffered by the children warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the children.

The mother shall authorise and request the principal of any school attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms.

10.

Each party shall forthwith inform the other, and keep each other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

11.

The father shall forthwith enrol himself to commence, participate in, and complete a post-separation parenting program, subject to the approval of that program by the Family Consultant, Ms K.

12.

The father shall continue his therapeutic relationship with Dr H and shall:

(a) Furnish to Dr H:

(i) A sealed copy of these orders.

(ii) A copy of the expert report of Dr R dated 9 February 2010.

(b) Waive confidentiality, and irrevocably authorise Dr H, in writing to:

(i) Consult with the Family Consultant, Independent Children’s Lawyer, and the mother’s solicitor, and

(ii) Make files, notes, reports, and documents available for inspection and production on subpoena, by the Family Consultant, Independent Children’s Lawyer and parties.

13.

Within 14 days, the father shall do all such things and sign all documents as may be necessary to commence therapeutic treatment with a psychologist, for as long as is deemed necessary by that psychologist, and for that purpose:

(a) The father shall meet any cost of such treatment not covered by rebate or insurance.

(b) The father shall inform the Independent Children’s Lawyer and the Family Consultant of the name and contact details of that psychologist.

(i) A sealed copy of these orders.

(ii) A copy of the Family Report authored by Ms K dated 3 May 2010.

(iii) A copy of the expert report of Dr R dated 9 February 2010.

(d) The father shall waive confidentiality, and irrevocably authorise the psychologist, in writing to:

(i) Consult with the Family Consultant, and

(ii) Make files, notes, reports, and documents available for inspection and production on subpoena, by the Family Consultant, Independent Children’s Lawyer and parties.

14.

The Family Consultant, Ms K, shall furnish the Court with an updated Family Report pursuant to s 62G of the Family Law Act 1975 by Friday 14 January 2011.

15.

The matter is adjourned to 9.30 am on Friday 28 January 2011 before Justice Austin for further directions.

16.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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